INTERIGHTS Bulletin

166
INTERIGHTS Bulletin
Volume 16 Number 4 2011
Pay Up or You’ll Be Detained! Improved Health
Systems and Accountability as a Response to
Violations Arising in Healthcare Settings
Judy Oder
Introduction
Human rights violations in healthcare
settings are illustrative of weak health
systems and the failure or lack of
accountability mechanisms to deal
with rights infringements across
Africa. This is reflected by the
emphasis placed on accountability by
the Special Rapporteur on the Right of
Everyone to the Enjoyment of the
Highest Attainable Standard of
Physical and Mental Health in stating
that the analytical framework of the
right to health includes effective,
transparent and accessible monitoring
and accountability mechanisms
available at the national and
international levels. 1
This article seeks to analyse some of
the main current challenges in
healthcare settings across Africa. In so
doing it looks at the principle of
accountability and states’ regional and
international human rights obligations
in light of selected serious human
rights infringements. It argues that
improved healthcare systems and the
entrenchment of accountability
processes within these could
potentially reduce the high number of
violations taking place in African
healthcare settings. Secondly, where
violations have taken place,
accountability processes should ensure
the availability of remedies for victims.
It concludes by arguing that minimum
resources should not be used as an
excuse for failing to address these
serious violations, as there are
measures states can take even when
resources are limited.
The principle of accountability in
human rights law
Accountability is fundamental to
human rights and includes the
monitoring of conduct. In the context
of a health system, there must be
accessible, transparent and effective
mechanisms of accountability in order
to understand how those with
responsibilities in delivering and
managing health care have discharged
their duties. 2
Closely linked to the principle of
accountability are obligations derived
from national, regional and
international human rights standards.
States are required to institute
measures necessary to both prevent
and remedy violations arising in
healthcare settings. Where violations
have occurred, remedies should
include the investigation, prosecution
and punishment of perpetrators.
A crucial first step is the recognition of
the right to the highest attainable
standard of health in national law, as
this imposes legal accountability on
those with responsibilities for health
systems. 3 However, legal recognition
on its own, whilst important, is
insufficient, since it is usually
formulated in a very general manner
that does not specify what is actually
required of those with responsibilities.
Therefore, a state must not only
recognise the right to health in
national law but also ensure detailed
provisions clarifying what society
expects by way of health-related
services and facilities. 4
Both regional instruments and
national constitutions in Africa include
specific provisions on the right to
health. 5 In addition, many more
national constitutional provisions
outline fundamental civil rights
provisions such as the right to life,
freedom from inhuman and degrading
treatment and the principle of equality
and non-discrimination, which are
applicable in the health context. The
African Charter on Human and
Peoples’ Rights (ACHPR) also
proscribes discrimination, 6 torture
and inhuman and degrading
treatment. 7 States are also parties to
other regional 8 and international 9
human rights instruments that
proscribe these types of violations.
However, examination of violations
that occur in health settings across the
region demonstrates that states are far
from respecting and implementing
their right-to-health obligations.
Selected violations arising in
healthcare settings
Detention of poor patients for failure
to pay hospital bills
In Kenya mothers who cannot pay
their bills for maternity or other
services are routinely detained. Both
private and public facilities seek to
pressure the patient’s relatives into
paying, and public facilities will use
detention to determine whether a
patient is really poor enough to qualify
for a waiver. Women who have recently
given birth are often forced to sleep on
the floor or share a bed with others, are
underfed and suffer verbal abuse from
staff for failing to pay. For women
whose babies have died, there is a
particular psychological cruelty to
being detained in a maternity ward,
surrounded by other mothers and their
infants. 10
In recent years, public hospitals in
Burundi have detained hundreds of
patients who were unable to pay their
hospital bills, often for several weeks or
months and, in one case, over a year.
Detained patients without money went
hungry if not fed by the charity of
others. Some were forced to vacate
their beds and sleep on the floor to
make space for paying patients. Often,
indigent patients did not receive
further medical treatment once the bill
had reached a large amount, even if
they needed only basic follow-up care